Pollution

​​​The International Convention for the Prevention of Pollution from Ships (MARPOL) is the main international convention covering prevention of pollution of the marine environment by ships from operational or accidental causes.

The MARPOL Convention was adopted on 2 November 1973 at IMO. The Protocol of 1978 was adopted in response to a spate of tanker accidents in 1976-1977. As the 1973 MARPOL Convention had not yet entered into force, the 1978 MARPOL Protocol absorbed the parent Convention. The combined instrument entered into force on 2 October 1983. In 1997, a Protocol was adopted to amend the Convention and a new Annex VI was added which entered into force on 19 May 2005. MARPOL has been updated by amendments through the years.

The Convention includes regulations aimed at preventing and minimizing pollution from ships – both accidental pollution and that from routine operations – and currently includes six technical Annexes. Special Areas with strict controls on operational discharges are included in most Annexes.

Covers prevention of pollution by oil from operational measures as well as from accidental discharges; the 1992 amendments to Annex I made it mandatory for new oil tankers to have double hulls and brought in a phase-in schedule for existing tankers to fit double hulls, which was subsequently revised in 2001 and 2003.

Details the discharge criteria and measures for the control of pollution by noxious liquid substances carried in bulk; some 250 substances were evaluated and included in the list appended to the Convention; the discharge of their residues is allowed only to reception facilities until certain concentrations and conditions (which vary with the category of substances) are complied with.

In any case, no discharge of residues containing noxious substances is permitted within 12 miles of the nearest land.

Contains general requirements for the issuing of detailed standards on packing, marking, labelling, documentation, stowage, quantity limitations, exceptions and notifications.

For the purpose of this Annex, “harmful substances” are those substances which are identified as marine pollutants in the International Maritime Dangerous Goods Code (IMDG Code) or which meet the criteria in the Appendix of Annex III.

Contains requirements to control pollution of the sea by sewage; the discharge of sewage into the sea is prohibited, except when the ship has in operation an approved sewage treatment plant or when the ship is discharging comminuted and disinfected sewage using an approved system at a distance of more than three nautical miles from the nearest land; sewage which is not comminuted or disinfected has to be discharged at a distance of more than 12 nautical miles from the nearest land.

Deals with different types of garbage and specifies the distances from land and the manner in which they may be disposed of; the most important feature of the Annex is the complete ban imposed on the disposal into the sea of all forms of plastics.

Criminal Enforcement

EPA may seek sanctions against individual employees of Federal facilities for criminal violations of the CWA. Criminal fines may be imposed under either CWA § 309(c) or 18 U.S.C. § 3571, the Alternative Fines Act. Enforcement of criminal violations is authorized under CWA § 309(c) for negligent and knowing violations, for knowing endangerments, and for making false statements. The specific fines and penalties under CWA § 309(c) for several types of criminal violations are:

§ 309(c)(1): Negligent Violations – Any negligent violation of certain CWA requirements (e.g., Effluent Limitations (§ 301) and Aquaculture (§318)) is punishable by a fine of not less than $2,500 nor more than $25,000 per day of violation and/or by imprisonment not to exceed 1 year. A second conviction for a negligent violation is punishable by a fine of not more than $50,000 per day of violation and/or imprisonment not to exceed 2 years.

A personhasactednegligently if shehasdepartedfromtheconductexpected of a reasonablyprudentpersonactingundersimilarcircumstances.Thehypotheticalreasonablepersonprovides an objective by whichtheconduct of others is judged. In law,thereasonableperson is not an averageperson or a typicalpersonbut a composite of thecommunity’sjudgment as to howthetypicalcommunitymembershouldbehave in situationsthatmightpose a threat of harm to thepublic.Eventhoughthemajority of people in thecommunitymaybehave in a certainway,thatdoesnotestablishthestandard of conduct of thereasonableperson.Forexample, a majority of people in a communitymayjay-walk,but jaywalkingmightstillfallbelowthecommunity’sstandards of safeconduct.

§ 309(c)(2): Knowing Violations – Any knowing violation of certain CWA requirements is punishable by a fine of not less than $5,000 nor more than $50,000 per day of violation and/or by imprisonment not to exceed 3 years. A second conviction for a knowing violation is punishable by a fine of not more than $100,000 per day of violation and/or imprisonment not to exceed 6 years.

In a “knowing violation” the person or company is aware of the facts that create the violation. A conscious and informed action brought about the violation. In contrast, a civil violation may be caused by an accident or mistake.

Examples of “knowing violations” include an intentional decision to dispose or dump pollutants into a river without a permit, or to not install a required air pollution control device.

§ 309(c)(3): Knowing Endangerment – Any knowing violation of certain CWA requirements that places another person in imminent danger of death or serious bodily injury is punishable by a fine of not more than $250,000 and/or by imprisonment not to exceed 15 years. A second conviction for knowing endangerment may result in a maximum punishment double that for a first-time violation (i.e., double the fine and/or imprisonment not to exceed 30 years).

Knew at the time that such acts put another person in imminent danger of death or serious bodily injury

§ 309(c)(4): False Statements – Any person who knowingly makes any false material statement, representation or certification may be punished by a fine of not more than $10,000 and/or by imprisonment not to exceed 2 years. A second conviction for making false statements in punishable by a fine of not more than $20,000 per day of violation and/or imprisonment of not more than 4 years.

Makes a false statement, representation, or certification statement/representation/certification was material in any document filed or required to be maintained.

Civil versus Criminal Liability/Guilt

To be found civilly liable for violating environmental laws the standard of proof is based upon “the preponderance of the evidence.” This means that the evidence presented is convincing and more likely to be true than not true. Effectively, the standard is satisfied if there is a greater than 50 percent chance that the evidence is true.

The defendant in a civil suit can either be found liable, following a trial, or reach a mutually agreed-upon settlement with the government. The defendant is then required to meet all of the terms of the settlement, but does not have to acknowledge that he violated the law.

Criminal guilt must be established “beyond a reasonable doubt.” This is a higher or stricter standard than the civil liability standard. When a criminal defendant pleads guilty or is convicted by a jury, there is no question of legal wrongdoing. He has legally committed the crime.

The Oil Pollution Act of 1990 (33 U.S.C. 2701-2761) amended the Clean Water Act and addressed the wide range of problems associated with preventing, responding to, and paying for oil pollution incidents in navigable waters of the United States. It created a comprehensive prevention, response, liability, and compensation regime to deal with vessel- and facility-caused oil pollution to U.S. navigable waters. OPA greatly increased federal oversight of maritime oil transportation, while providing greater environmental safeguards by:

Setting new requirements for vessel construction and crew licensing and manning,